TMI Blog2018 (3) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... and 2285 of 2018 - - - Dated:- 12-3-2018 - T. Rajani, J. For the Petitioners : Mr. T. Nagarjuna Reddy For the Respondent : Mr. Anil Prasad Tiwari ORDER The condition, that the petitioners shall furnish bank guarantee for the remaining due amount, within ten days from the date of order of the Court below, imposed, while granting bail to the petitioners, is what is brought into question in the present criminal petitions. 2. Heard the counsel for the petitioners and Mr. Anil Prasad Tiwari, Special Public Prosecutor appearing for the respondent. 3. The facts of the case need to be briefly stated, in order to decide, to sustain or not to sustain the aforesaid condition: The petitioners were engaged in providing taxable services in assisting the prospective customers in process of loans from different banks and financial institutions. The banks gave certain amount as consideration to the petitioners under the head Commission and these amounts were received for rendering the said services, which are liable to service tax. Information was received by DGGSTI, Hyderabad, which suggested that the petitioners collected the service tax from the service recipients ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for furnishing the bank guarantee has expired by the date of the petitioners approaching this Court and secondly, the petitioners showed the schedule of payment, in the memo dated 14.02.2018, submitted to the Special Court for Trial of Economic Offences. The petitioners were asked to offer their comments and the petitioners appended their signatures on the same along with date, as a token of having seen the memo; the contention of the petitioners that they are not avoiding the payment of service tax is false and misleading; the petitioners, vide statements dated 23.01.2018, recorded under Section 14 of the Central Excise Act, made applicable to service tax under Section 83 of the Act, accepted that service tax amounting to ₹ 4,05,77,984/- and ₹ 2,16,89,832/- respectively was collected by them, but they failed to credit to same to the Central Exchequer; the issue is not just a case of service tax evasion but a serious fraud of collecting service tax and failing to credit the same to the Central Exchequer beyond the period of six months from the date on which the said payment became due. 9. The Special Public Prosecutor, except making the above submissions in the count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Delhi High Court in two of its decisions i.e. eBIZ.COM PVT. LTD v. UNION OF INDIA (para 79) 2016 (44) S.T.R. 526 (DEL.) and MAKEMYTRIP (INDIA) PVT. LTD. v. UNION OF INDIA (para 116) 2016 (44) S.T.R. 481 (DEL.) and the relevant portion of para 79 is as under: 79. To summarise the conclusions in this judgment: (i) The scheme of the provisions of the Finance Act 1994 (FA), does not permit the DGCEI or for that matter the Service Tax Department (ST Department) to by-pass the procedure as set out in Section 73A (3) and (4) of the FA before going ahead with the arrest of a person under Sections 90 and 91 of the FA. The power of arrest is to be used with great circumspection and not casually. It is not to be straightway presumed by the DGCEI, without following the procedure under Section 73A (3) and (4) of the FA, that a person has collected service tax and retained such amount without depositing it to the credit of the Central Government. (ii) Where an assessee has been regularly filing service tax returns which have been accepted by the ST Department or which in any event have been examined by it, as in the case of the two Petitioners, without commencement of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Therefore, notwithstanding the fact that the petitioners had conceded in the Bombay High Court that they have no fundamental right to construct hutments on pavements and that they will not object to their demolition after October 15, 1981, they are entitled to assert that any such action on the part of public authorities will in violation of their fundamental rights. The Supreme Court was dealing with a case of pavement dwellers where the dwellers gave an undertaking to vacate the footpaths and that undertaking was brought against the footpath dwellers therein and while appreciating the violation of such undertaking, the Supreme Court held as above. It further held that there can be no estoppel against the Constitution; the Constitution is not only the paramount law of the land but it is the source and sustenance of all laws; the doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs; if a person makes a representation to another, on the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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